Marwa (Suing as the Administratix of the Estate of Johnes Marwa Rogoro) v Ngera & another (Environment and Land Miscellaneous Case E020 of 2021) [2025] KEELC 8117 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an adverse possession claim and ordered a widow's eviction from two parcels she claimed by long occupation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's claim for adverse possession is merited
- 2.Whether the 2nd Defendant's claim for eviction and injunction against the Plaintiff is merited
- 3.Who to bear the costs of the suits
Key legal issues
#Whether the Plaintiff proved adverse possession over LR NO. BUKIRA/BWISABOKA/3649 and 3651
Claim dismissed; the Plaintiff failed to discharge the burden of proving continuous, open, non-consensual occupation for over twelve years
PW1 testified to occupation since 1990 but produced no documents despite being granted leave. The court held the claimant bears the burden under Sections 107 and 108 of the Evidence Act. Her own testimony confirmed filing a Tribunal case in 2010, showing her occupation was interrupted before the twelve-year period elapsed. Further, no sale agreement or title in the 1st Defendant's name was produced.
Whether the 2nd Defendant's claim for eviction and permanent injunction in Suit No. 485 of 2017 was merited
Claim allowed; the Plaintiff (in the OS) proved ownership and the Defendant is a trespasser liable to eviction and permanent injunction
The 2nd Defendant traced his root of title through green cards from the original parcel 94 to parcels 3649 and 3651, registered in his name on 14th July 2009. Under Sections 24(a) and 26(1) of the Land Registration Act his title is absolute and indefeasible. The Defendant failed to file a defence to the Plaint and did not rebut this documentary evidence, so the claim was proved on a balance of probabilities.
Whether the claimant's occupation was interrupted by litigation before the expiry of twelve years
Yes; the occupation was broken by the Kehancha Disputes Tribunal proceedings in 2010 and the subsequent judicial review
The court found that even if residence since 1990 were accepted, the filing of Kehancha Land Disputes Tribunal Case No. 4 of 2010, which was quashed in JR No. 40 of 2010, interrupted or broke the continuity of occupation before the twelve-year period ran. Continuity with the owner's knowledge was a key ingredient of adverse possession.
Legal principles established
#- Adverse possession requires registered land in another's name, open and exclusive possession adverse to the owner's title, and occupation in excess of twelve years with dispossession or discontinuance by the owner
- The burden of proving adverse possession rests on the claimant; failure by a party to adduce evidence does not shift that burden
- Registration of a person as proprietor vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership
Court orders
#- 1.The Amended Originating Summons dated 21st February 2024 is dismissed in its entirety with costs to the 2nd Defendant
- 2.Judgment entered for the Plaintiff in Migori ELC No. 485 of 2017 against the Defendant
- 3.Permanent injunction issued restraining Loice Manoti Marwa from trespassing, occupying, cultivating, grazing and/or carrying out any dealings on LR NO. BUKIRA/BWISABOKA/3649 and LR NO. BUKIRA/BWISABOKA/3651, save that harvesting of crops already growing may be done within the stipulated period
- 4.The area Chief and/or Assistant Chief to oversee the temporary implementation of the order before the end of the sixty (60) day period
- 5.Eviction order issued against the Defendant to vacate the suit properties within 60 days, failing which the OCS Migori Police Station shall ensure compliance
- 6.In the event of failure to vacate, eviction to take place immediately upon expiry of sixty (60) days from the date of judgment with the assistance of the OCS Migori Police Station
- 7.Costs of Suit No. 485 of 2017 to be borne by Loice Manoti Marwa, and she to also bear the costs of the Originating Summons (now E020 of 2021)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya and Sections 1A(1) and 1B of the Civil Procedure Act (Chapter 21, Laws of Kenya), the court proceeding with the Miscellaneous Application as successor to the Originating Summons in the interest of justice
- Consolidated with
- Migori ELC No. 409 of 2017 (OS) (formerly Kisii ELC No. 86 of 2015), Migori ELC No. 485 of 2017 (formerly Kisii High Court Civil Suit No. 95 of 2015)
Relief refused
#Declaration that the defendant's rights to recover LR NO BUKIRA/BWISABOKA/3649 & 3651 are barred under the Limitation of Actions Act and titles extinguished by adverse possession
The Plaintiff failed to prove open, continuous and non-consensual occupation for over twelve years on a balance of probabilities
Orders that the plaintiff/estate of Johnes Marwa Rogoro be registered as proprietor of the suit parcels and that the parcels form part of the deceased's estate
Adverse possession not proved; the evidence showed the 1st Defendant never owned the suit parcels
Costs
Costs of the Amended Originating Summons (E020 of 2021) to the 2nd Defendant; costs of Suit No. 485 of 2017 to be borne by Loice Manoti Marwa (the Plaintiff in the OS/Defendant in Suit 485), who also bears the costs of the Originating Summons
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the Amended Originating Summons dated 21st February, 2024 is dismissed in its entirety with costs to the 2nd Defendant. The Plaintiff's claim in Migori ELC. No. 485 of 2017, as consolidated with the Originating Summons herein, succeeds.
An order of permanent injunction is hereby issued restraining the Defendant (Loice Manoti Marwa) from trespassing, occupying, cultivating, grazing and/or carrying out any dealings on LR NO. BUKIRA/BWISABOKA/3649 and LR NO BUKIRA/BWISABOKA/3651.
An eviction order is hereby issued against the Defendant to vacate the suit properties within 60 days failure which the OCS Migori Police Station shall ensure compliance with the said orders
It follows that the Plaintiff failed to prove her case on a balance of probabilities and thus, the entire claim of adverse possession is not merited and fails in its entirety.
failure by a party to adduce evidence in support of their allegations does not shift the burden of proof of the party's case to the other, the Defendant in the instant matter. The Plaintiff still bore that burden on a balance of probabilities.
Issues in the judgment
#Inconsistent dates for the quashing of the Tribunal decision: paragraph 14 states 14th November 2015 while paragraph 69 states 14/11/2014
The judgment inconsistently labels the Defendant's exhibits as DExh in the evidence section but refers to them as PExhs in the analysis
The judgment appears internally inconsistent on who failed to file pleadings, stating both that the Plaintiff in the OS never entered appearance and that the Defendant failed to file a defence to the Plaint in Suit No. 485 of 2017, without clarifying the cross-suit positions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marwa (Suing as the Administratix of the Estate of Johnes Marwa Rogoro) v Ngera & another (Environment and Land Miscellaneous Case E020 of 2021) [2025] KEELC 8117 (KLR)", Case Analysis (2025). MIGORI ELC MSC CASE NO. E020 OF 2021 (consolidated with Migori ELC No. 485 of 2017, formerly Kisii High Court Civil Suit No. 95 of 2015; and Migori ELC No. 409 of 2017 (OS), formerly Kisii ELC No. 86 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8117/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.